Beshears v. Commonwealth

• Decision Date: 12 June 1931
• Citation: 39 S.W.2d 995,239 Ky. 554
• Parties: BESHEARS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

39 S.W.2d 995

239 Ky. 554

BESHEARS v. COMMONWEALTH.

Court of Appeals of Kentucky

June 12, 1931

Appeal from Circuit Court, Hopkins County.

Ray Beshears was convicted of a second offense of unlawfully possessing spirituous, vinous, malt, and intoxicating liquor and he appeals.

Affirmed.

Charles G. Franklin, of Madisonville, for appellant.

J. W Cammack, Atty. Gen., and S. B. Kirby, Jr., Asst. Atty. Gen for the Commonwealth.

THOMAS C.J.

On February 5, 1931, the grand jury of Hopkins county returned an indictment against appellant and defendant below, Ray Beshears, charging him with unlawfully possessing spirituous vinous, malt, and intoxicating liquor, and it was appropriately averred in the indictment that defendant had, since March 22, 1922, when our present prohibition law took effect, committed the same offense and for which he had been previously convicted in the Madisonville police court. Defendant's demurrer to the first offense charged in the indictment was overruled, and at his trial under his plea of not guilty he was convicted and given a felony punishment of confinement in the penitentiary for two years. His motion for a new trial was overruled, and he prosecutes this appeal. Learned counsel urges in this court four grounds for a reversal of the judgment, and which are: (1) Error of the court in overruling defendant's demurrer to the part of the indictment to which it was directed; (2) error in overruling defendant's motion to find him not guilty of the first offense charged in the indictment; (3) error in overruling defendant's objection to evidence offered by the commonwealth, and permitting it to be introduced, and (4) error in allowing the commonwealth to introduce additional testimony in chief after it had rested and defendant had offered and moved the court to peremptorily acquit him, and which motion had been argued by counsel for both sides. They will be disposed of in the order named.

1. The argument in support of ground 1 is that it was and is essential to a good indictment accusing defendant of committing a second offense under the statute to allege in its accusatory paragraph the commission of and conviction for the first offense against the same statute before the commonwealth may demand and obtain the felony punishment provided for a second conviction thereunder, and that, since the present indictment only said in its accusatory part that, "it being his second offense," it was bad, for the reason stated, in so far as it charged a first violation. The descriptive part of the indictment did set out in approved form the first conviction for a violation of the statute so as to demand the infliction of a felony punishment of defendant if he was guilty of the second offense charged in the indictment and for which he was indicted and being tried; but learned counsel in his argument supra proceeds upon the theory that a second offense against the statute, and for which confinement in the penitentiary may be inflicted, is itself a felony, if the commonwealth chooses to make it so by charging the first conviction, and which felony consists in violating the statute the second time, and all of which should be appropriately stated in the accusatory part of the indictment because it is a component part of the name of the crime for which defendant is indicted, and which is described in the descriptive part of the indictment.

If the premise of counsel was correct, there would be some foundation for his argument, but the fault found with his conclusion consists in the error of his premise. Both offenses are but violations of the prohibition statute, and they are no more different in kind than if the statute had said that for a second violation of the statute the offender should be fined twice as much as he could be for the commission of the first offense, and confined in jail for a period twice as long as that provided for his first violation. See Ky. St. § 2554a-2. The fact that the punishment provided for the second violation is of the character and kind visited upon those who commit felonies in the commonwealth is not sufficient to, and it does not, change a second violation of the statute from one class of crimes into another one. Therefore, all that is necessary to be stated in the accusatory part of an indictment for a second violation of the statute is only that which is required to be stated in that part of the indictment for a first violation; i. e., that defendant was guilty of unlawfully possessing intoxicating liquors, and to follow it with a statement in the descriptive part of the indictment of the facts constituting that charge, plus a statement, in appropriate language, showing the first conviction so as to entitle the commonwealth to demand the penitentiary punishment for the second conviction. See 31 C.J. 734, 735, §§ 282 and 283. A portion of the text of the latter section says: "A prior conviction should be alleged directly and not by recital. The indictment must set out the time and place of the first conviction, and that the previous conviction was for an offense committed before the commission of that for which the prisoner is on trial. However, it is not necessary to allege previous convictions with the same particularity as if the party was charged originally with the commission of such an offense, some courts holding, in this connection, that the prior convictions are not elements of the subsequent offense. Such allegations only are necessary as to give accused notice that a greater penalty is sought to be inflicted than for the first offense."

In note 84 to that text, there are cited these cases in its support Rawlings v. Commonwealth, 191 Ky. 401, 230 S.W. 529, 530; State v. Webb, 36 N.D. 235, 162 N.W. 358; Neece v. State, 62 Tex. Cr. R. 378, 137 S.W. 919; Howard v. State, 139 Wis. 529, 121 N.W. 133; Dahlgren v. State, 163 Wis. 141, 157 N.W. 531. In the Rawlings Case from this court we held, following other cases cited in that opinion, that "the increased punishment provided by the 'Habitual Criminal Act' was no element or ingredient of the principal offense charged in the indictment," and that "the allegations of former convictions need not be contained in a separately numbered count from the accusatory part of the indictment." (Our emphasis.) Two defendants were accused in the same indictment in that case, and it was charged against one of them that he had been convicted of a felony prior to the commission of the one for which he was indicted, but no such charge was preferred against his codefendant in the indictment, and the one who was not charged with a first offense, so as to be subject to the provided increased punishment, urged that two offenses were charged in the indictment; one against the defendant who was charged with committing a first felony, and another distinct one against the defendant not so charged. But we disposed of that contention thus: "But that fact is not true, since each of them is charged with the same offense, with additional facts alleged against...